Assange At Bay

An interview with Julian Assange’s lawyer, Jennifer Robinson

by Gordon Campbell

The criticisms of Wikileaks founder Julian Assange spring from the accusations about (a) his alleged intolerance of dissent and criticism (b) his sexual behaviour in Sweden and (c) his rationale for seeking asylum in Ecuador’s London Embassy, rather than returning to Sweden and facing his accusers in court. A sense of betrayal is evident among some former supporters, such as Jemima Khan. At its heart lie the allegations of sexual predation on his part, made by two women in Sweden. The accusations are that on both occasions what began as consensual sex became rape in one case, and in the other, sexual molestation.

Assange has denied the allegations, and has offered to be questioned by the Swedish authorities, either in Britain and/or by video link. Returning in person to fight the accusations, Assange claims, would put him at serious risk of being extradited to the United States to face charges regarding the material taken by Bradley Manning and subsequently published by Wikileaks. Assange’s legal advice is that extradition to the US could occur, regardless of the outcome of the Swedish court proceedings.

This has been a disputed point. His critics argue that Swedish law prohibits extradition for charges carrying the death penalty or for charges of a political nature – but that stance seems disingenuous. If the US extradition request was merely framed in terms of criminal, not political charges – eg computer theft or collusion with theft by Manning of what Wikileaks later published – the extradition request would fall into a grey area where it is unclear whether the Swedish authorities would retain much discretion to refuse co-operation with the US request. It is only if the US publicly waives its intentions to prosecute Assange – which it has refused to do – that the Swedish prosecution could go ahead without the US extradition shadow hanging over it.

Currently, an impasse exists. Jemima Khan lost 20,000 pounds as her part of the bail forfeited by Assange’s supporters when he fled to the Ecuadorian Embassy. In a critical New Statesman article published early in February, Khan depicted Assange as being a cult-like leader intolerant of criticism – “an Australian L. Ron Hubbard” – athough the examples she offers seem utterly trivial. At the centre of her article though, Khan raises the issue of genuine substance: “The women in question have human rights, too, and need resolution. Assange’s noble cause and his wish to avoid a US court does not trump their right to be heard in a Swedish court.”

That is the basis of the current deadlock. Khan is right, but only half right. One could just as easily invert her argument by saying that the women’s right to be heard does not require Assange to undergo decades in a US Supermax prison regardless of whether he is found innocent or guilty of the charges in Sweden. There is no clean solution, and that helps to explain some of the heat in the rhetoric about Assange. (If only people shout loud enough, their side will drown out the other.)

Assange’s personal behaviour has hardly been blameless. Moreover, his decision to subordinate his accusers right to be heard in court to his desire to avoid imprisonment in the US has been laid open to challenge. Yet the celebrity worship that elevated Assange and is now denigrating him also seems highly dubious. Khan writes about Alex Gibney’s new Wikileaks film : “In many ways, the film’s narrative arc mirrors my own journey with Assange, from admiration to demoralisation.” To which one can say : was Assange’s celebrity ever about anything other than the personal ‘journey’ of his admirers and accusers? Only, it seems, if Assange goes to Sweden, is acquitted but martyrs himself in a US prison for a decade or more, would admiration be restored and a “ Free Julian Assange” lobby group then formed. Small consolation, in the circumstances. For now, Assange is refusing to go down that route – and as a result, the rape allegation remain unresolved in court. As a further consequence, Assange has become the poster child for the expendability of women’s rights for the greater good of left wing political causes.

Recently Assange’s lawyer Jennifer Robinson [pictured left] was in New Zealand with West Papuan independence leader Benny Wenda, as part of her work in an organisation called International Lawyers for West Papua. In a brief interview, Werewolf editor Gordon Campbell sought an update from Robinson on the legal aspects of Assange’s situation.

Campbell : The Swedish prosecutor in a press release had said that Assange – if her returned to Sweden – would be held in custody and wouldn’t be released on bail. And [allegedly] this would preclude his ability to claim asylum in Sweden. Is that correct?

Robinson : Yes. The situation Julian was facing was that there is a grand jury impaneled in the US but we have no legal way to flush out the Department of Justice to determine whether or not there is a sealed indictment in the US. We know the grand jury [investigation] is ongoing. We know their criminal investigation continues. We don’t know what the outcome of that is, because it is completely sealed. So he was in a position where he had exhausted his last appeal with respect to the UK – about going to Sweden. He knew that he going to be taken into custody in the coning days ahead of that. The Swedish prosecutor had put out a press release saying that she would put him in custody and that he would be held in custody pending charge and trial. Which meant that physically, he wouldn’t have the opportunity to seek asylum [from say the Ecuadorian embassy in Sweden] with respect to what might happen in the United States.

But he could have sought asylum in Sweden itself?

I don’t know enough about that to know. Yes, I guess he could have, I think his view was…he doesn’t trust Sweden.

Lets look at that. There are people who say his view of Sweden is false, and reflects a paranoia not grounded in the Swedish realities. They’d cite two strong counts:Swedish won’t extradite on a capital punishment charge and secondly, it won’t extradite for a political charge – which admittedly does leave the door open for a charge framed in criminal terms. Yet in the circumstances of this case, wouldn’t a criminal charge be seen for the de facto political charge that it is? So what’s the problem?

Well, I debated a professor of public international law – Pal Wrange – in Stockholm last summer. And we came to the same conclusion – that it depends entirely on what the US pleads its case as. It depends entirely on the criminal charges that are brought, and [whether] the charge is, on its face, not political, I understand under Swedish law that it can consider certain facts. But if on the face of it, it does not appear to be political – it if it is some sort of accessory / liability in computer crimes –

Yes, I understand how it could be framed as a criminal matter but –

It is entirely possible he could be extradited to the US. The legal advice we have from Sweden is that ultimately it will be a decision by the executive, and it is within the power of the executive to give an undertaking that they wouldn’t do that [extradite Assange] Also, because he is being extradited from the UK to Sweden, then the UK could insist on the rule of specialty, and insist that he not be extradited to any third country for any other crime, because he is only being extradited for that particular criminal investigation. And the UK has refused to do that. The point is… it is entirely possible to be extradited from Sweden. You don’t have to argue any collusion with the US. You don’t have to argue any political interference. It is entirely possible.

Legally possible. The question is whether it would be politically possible.

Would you be willing to put your life at risk for that possibility?

You wouldn’t be putting your life at risk. In this case, you’d be putting your liberty at risk.

Would you be willing to put your liberty at risk ?

Well, that’s his decision. And the longer he maintains that position, the more he erodes the consensus in Sweden that would be his best protection against extradition. I’m not saying there’s a simple way out of this. But that whittling away of support must be a concern, isn’t it?

Public opinion in Sweden has always been a concern. Because of the nature of these allegations. Because of the nature of the press coverage in Sweden. And because of the very public statements being made by members of the Swedish administration about Julian. oF course, we are concerned about the politcial climate in Sweden. I’m not going to venture an opinion on that, or any of his choices except to say that – legally speaking – it is possible to be extradited from Sweden. The assurances that were sought by Ecuador in the process of granting political asylum were refused. And that’s his legal position, as it stands.

Clearly, the role of jntermediaries will be crucial if this deadlock is ever to be broken. As Assange has pointed out, pressure could be applied to the US to publicly waive any intent to extradite him. The other obvious pressure point is Sweden itself, to provide an assurance that there would be no onward extradition, whatever the outcome of the trial. Arguably that would even be in accord with Sweden’s obligations under the Refugee Convention of…what’s the French term?

Non-refoulement?

Exactly*. So either a commitment by the US to waive prosecution or a public commitment to non-refoulement to the US by Sweden would break the deadlock?

Absolutely.

And obviously, those commitments are not going to be volunteered. They’ll have to be elicited. In that respect, what could the Australian government be doing – on behalf of its citizen – that it is not doing at the moment?

The Australian government could have done any number of things that we have been asking them to do for more than two years. We asked them to seek an assurance from the US that they wouldn’t seek his extradition. We asked them to seek an assurance from Sweden that they wouldn’t send him onwards to the United States but that he would be permitted to come home to Australia. They refused to ask for any of those assurances. Flat out refused. Its well within the power of a state to ask on behalf of its citizens.

We’ve asked for various due process assurances. In particular, political assurances that if Julian were to go to Sweden, that he would receive an assurance from the Swedish government that he could travel home to Australia after whatever happens, happens. But at least he’d be home [afterwards] in Australia. And the Australian government said “No.” The Australian government won’t even ask the US whether they are going to prosecute. We asked them – ask the US what their intentions are. [But] the only thing the Australian government has asked – which we have only able to detect through a Freedom of Information request – is that they be given advance warning if charges are brought, so that they can prepare their political response.

Couldn’t there be a legal rationale for that – in that the Australian government wouldn’t want to prejudge or preclude any beef that some third country may well have with Assange, given the global nature of Wikileaks?

No. All it would be requesting – and this is all a moot point, it is all only for background basically now. Because the Australian government was asked for two years and said no, and that’s the reason he sought asylum from another state. And Ecuador has asked all the questions that we asked the Australian government to ask, and were refused answers. But while it is now a moot point, no – it wouldn’t preclude further action. All we were asking is that he be returned to Australia, so that he could defend any future extradition request.

When it comes to public opinion, two elements are being put on the scales – the rights of the women to have their case heard, and Assange’s right to avoid political persecution. What is your answer to Khan’s point that the Swedish women have human rights too – and that they deserve to have their day in court.

We absolutely agree they deserve to have this matter resolved, as much as Julian deserves to have this matter resolved. He has offered his testimony to answer these questions for more than two years. He actually co-operated with the Swedish prosecutor while he was in Sweden. He sought her permission to leave and got that permission to leave. He was interviewed with respect to the allegations. He has been offering his testimony since then. All he is asking for is an undertaking with respect to onward extradition. If those could be provided, he is happy to participate. In no way, is he attempting to deny their right – he is asserting his own. He wants to resolve this. He hopes to resolve it. But not at the risk of being sent on to the United States. He continues to offer his testimony from the Ecuadorian Embassy. The Ecuadorian government has offered that to the Swedish government.

Khan’s point though is that Assange’s rights – and his desire to avoid a US kangaroo court – do not trump their rights.

He has never said that either. He has offered himself to be questioned and to answer their allegations. And with the appropriate assurances, he would go back and answer.

Have you seen the Alex Gibney film on Wikileaks ?

Yes, I was at Sundance…

Do you have a response to its handling of the legal position?

The film actually covers some important ground. It shows the importance of Wikileaks, at least in the initial states of the film. It shows how the NewYork Times has tried to distance themselves in ways that are rather unacceptable – in the way they’ve treated us all. With respect to Julian’s legal position..it does not refer to the Grand Jury. It does not explain the grand jury or how the Grand Jury process works. And then in the narration, Alex Gibney himself says ‘despite any evidence of a US secret plot, Ecuador grants asylum.” In order to understand the US position and the Ecuadorian government’s decision to grant asylum, you have to be able to understand what the grand jury is – that it is by its nature secret, and that we have no legal recourse to flush out the answers from the grand jury. It is simply a waiting game for Julian. And unless and until the US government make public what it has decided to do, we have no recourse. But we know the grand jury has been impaneled, and we know that Julian is the subject – that’s in the Bradley Manning proceedings. But none of that –

Is in the film?

None of it is in the film.

Perhaps the most damaging aspect of the Khan article is the characterisation of Assange as being at the centre of a dwindling cult of Scientology –like followers – from whom he demands absolute fealty. Is that the guy you know?

I would say that is not an accurate assessment. Wikileaks still has widespread support. My observation of the Wikileaks team – and I interact with them regularly – is they are an incredibly hardworking and intelligent-thinking group of people who question him constantly. I have no problem with people criticising – but cult-like status? That’s incredibly unfair. Wikileaks was set up – and Julian has worked tirelessly – to reveal Scientology…

Right. But its not about his attitude to Scientology. Its whether he is starting to evidence some of its traits.

How so?

By dint of – at least according to Khan – his obfuscation, and his lack of transparency.

Obfuscation about what, though ?

Obfuscation about his rationale for refusing to go to Sweden. Those arguments that he advances are being seen – fairly or otherwise – as excuses, rather than as solidly based concerns.

Well, these are questions that should be put to Julian, not to me. But he has explained his position. The Ecuadorian government has given a full statement on the matters that they have considered in granting him asylum. The Ecuadorian Foreign Ministry had an entire legal team analyzing the application. Julian had a full legal team that submitted the application, that was looked over by Ecuador and considered very carefully, and approved. Julian has made public statements giving the reasons for his seeking asylum. There are legal commentators on either side of the debate who agree one way or the other -

That a clear and present danger to him does exist?

Precisely. So I don’t think in any way he has obfuscated. He has been very clear about what his reasons are. People might disagree with them, but a lot of people agree with him. I don’t think you can call that obfuscation. He’s been very upfront.

Footnote * : Under the Refugee Convention, the non-refoulement obligation of ensuring Assange would not be extradited by Sweden onwards to a third country where he is at risk of political persecution rests finally with the United Kingdom. However, there is no sign the UK has sought or required any guarantees from Sweden about onward extradition.

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Enter the ‘Wolf

Hi and welcome to the 52nd edition of Werewolf in which we examine the collapsing state of the public health system. As our cover story reveals this month, highly capable foreign specialists (such as Dr. Alejandro Jimenez) are coming here to work in our DHB system with the best of intentions, but are leaving in remarkably short periods of time – because their work is chronically undervalued, because of cost cutting delays in the provision of essential equipment and staff, and because the DHBs seem more interested in coming in under budget than delivering an exceptional standard of care. Why isn’t this a political scandal? Because neither Labour nor National want to support any salvation programme likely to cost more money. So, there’s a silent crisis in our public health system – known only to the staff who work in it, and the patients who use it.

Thanks once again to Lyndon for helping me post this 52nd issue online. If anyone out there ever wants to be involved and talk over some story ideas, contact me at gordon@werewolf.co.nz

Cheers,
Gordon Campbell
Editor, Werewolf

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